DIVISIONAL COURT FINDS THAT EXPERT IN CONTEMPT OF COURT SHOULD HAVE BEEN ERASED FROM MEDICAL REGISTER: “NEW” EVIDENCE ADMITTED

The judgment of the Divisional Court today in General Medical Council & Ors v Zafar [2020] EWHC 846 (Admin) provides an interesting sequel to the earlier judgments in relation to contempt of court by a doctor who had been seriously negligent in preparing a medical report. It also provides an example of a court admitting new evidence in circumstances where there had been agreement that this evidence should not be used at first instance.

THE CASE

Dr Zafar had been found guilty of contempt of court in relation to his negligent decision to alter the contents of a medical report. He was committed to prison for six months, suspended for two years. On appeal to the Court of Appeal it was indicated that, in normal circumstances, an expert acting in this way could expect to be imprisoned, however it was inappropriate to change the sentence in this particular case.

Dr Zafar was subsequently brought before the Medical Practitioners Tribunal, he was suspended for 12 months. An appeal was brought by the General Medical Council arguing that this suspension was insufficient to protect the public interest.

THE BACKGROUND

The respondent to this appeal, Asef Zafar, is a doctor. By a determination of the Medical Practitioners Tribunal (“MPT”) of 24 May 2019, his registration was directed to be suspended for a period of twelve months. Each of the appellants, the General Medical Council (“GMC”) and the Professional Standards Authority for Health and Social Care (“the Authority”), appeal against such determination. They maintain that, in all the circumstances, such a sanction was entirely unjustified and insufficient to protect the public and the only proper sanction was and is erasure.

There is one very unusual feature about this appeal. The Allegation advanced by the GMC before the MPT – the Authority played no part in those proceedings below– was expressed to be founded on a decision made in the High Court by Garnham J on 5 October 2018, whereby Dr Zafar was adjudged to have been in contempt of court in ten identified respects; and when he was on the same date committed to prison for six months, suspended for two years. However, that sentence, by permission of the trial judge himself, was then the subject of an appeal by the claimant in the underlying proceedings, Liverpool Victoria Insurance Co. Limited (“LVI”). It argued that the sentence of Garnham J was unduly lenient. In a detailed judgment handed down on 19 March 2019 and which has since been reported ([2019] EWCA Civ 392, [2019] 1 WLR 3833) the Court of Appeal allowed the appeal. It agreed that the sentence was unduly lenient: albeit it indicated that, in the circumstances, a declaration to that effect would suffice and thus it did not actually increase the sentence. The unusual feature of the present appeal is that that decision of the Court of Appeal, which antedated the final hearing in the MPT by some two months, was not made known to the panel of the MPT determining the case. On the contrary, it was withheld from the MPT by the agreement of those then representing the parties, who at that stage were the GMC and Dr Zafar.

It is now said by the GMC and by the Authority that that was gravely wrong. The MPT should have been apprised of the Court of Appeal decision for the purposes of its consideration of sanction; and this court should itself have regard to it for that purpose. That is disputed on behalf of Dr Zafar. It is said that it was correct not to place the Court of Appeal decision before the MPT; and in any event, where this happened by agreement between the parties, the appellants should not, and cannot properly, be permitted now to adduce the Court of Appeal decision as a form of fresh evidence in this court.

THE JUDGMENT ON WHETHER THE DECISION OF THE COURT OF APPEAL SHOULD BE ADMITTED

The Court then considered whether the Court of Appeal judgment should have been admitted.

There were before the MPT, by agreement, the complete substantive judgment and the complete sentencing remarks of Garnham J. The MPT had regard to them, not only as to the judge’s primary findings of fact but also as to the judicial evaluation made by him. That is evident both from the structure and from the contents of the MPT determination on sanction; and was entirely sensible and understandable. But given that that judicial evaluation of Garnham J had then itself been judicially re-evaluated in the Court of Appeal, how can it be anything other than logical (and sensible) that the Court of Appeal judgment itself likewise should have been available to the MPT for these purposes? In truth, the MPT was – through no fault of its own – being left to decide the matter on an incomplete (and misleadingly incomplete) basis. That is not a position which ought now to be sustained. It should, on the contrary, be put right.

Ms O’Rourke objected that the Court of Appeal judgment had not interfered with the actual sentence of Garnham J. That is true. It had not. (Indeed, as a matter of technicality, Mr Hare and Ms Morris were in turn no doubt right to say that the Allegation in the MPT proceedings thus had not needed formal amendment.) But the fact remains that the Court of Appeal had allowed the appeal and declared the sentence of Garnham J to be unduly lenient. Thus the sentencing remarks and sentence of Garnham J lost, in the respects identified by the Court of Appeal, the authority which the MPT had understandably accorded them. The fact that, as Ms O’Rourke said to us, Dr Zafar accepted and accepts the judgment of Garnham J but does not accept the judgment of the Court of Appeal is nothing to the point. The evidence in the Court of Appeal was the same as that before Garnham J. He was represented before the Court of Appeal and was able there to put his arguments (which the Court of Appeal rejected). There was no further evidence and no further arguments on these aspects which he could meaningfully give.

Ms O’Rourke necessarily accepted that the rules of evidence in MPT proceedings are much broader than those generally applicable in a court of law and accepted that the rule of evidence commonly known as the rule in Hollington v Hewthorn (see [1943] KB 547) did not apply as such in such a context: see Rule 34 (1) of the General Medical Council (Fitness to Practise) Rules 2004. She nevertheless stoutly maintained that in so far as the judgment of the Court of Appeal was potentially “evidence” it was of no or limited probative value. Indeed she said that it was irrelevant, as simply representing the views of three appeal court judges as to the seriousness of Dr Zafar’s conduct: when such evaluation was for the MPT alone. On that basis, the only function of permitting such judgment to be deployed would, she said, be to create unwarranted and unjustifiable prejudice against Dr Zafar. When asked how it was, then, that the judgment and sentencing remarks of Garnham J were (in full) before the MPT by agreement, she in effect said that they provided the relevant primary factual background and “context”. She referred us to the decision of Ouseley J in the case of R (Squier) vGMC [2015] EWHC 299 (Admin) in this regard.

These arguments are, in my opinion, wholly unsustainable.

It is quite true that, in terms of determining the appropriate sanction, it was for the MPT to decide, by reference to the protection of the public, what was required to promote and maintain public confidence in the medical profession and to promote and maintain proper professional standards and conduct. But the dishonesty and recklessness of Dr Zafar (as found) did not relate to his clinical practice at all. Rather, it related to his medico-legal practice: and, as Garnham J himself had inevitably found, such conduct causes serious damage to the administration of justice. As the judge said in his sentencing remarks, critical to the proper operation of the justice system is the trust that courts have to place in solicitors and expert witnesses appearing before them.

Thus for its purposes it was essential that, in considering sanction, the MPT should have the most authoritative judicial guidance, on the facts of this case, as to the gravity of Dr Zafar’s conduct with regard to the good administration of justice. That, essentially, is why the judgment of the Court of Appeal was so relevant and why it was required to be placed before the MPT for its consideration. Once the MPT had such guidance (along with all other relevant matters) then the MPT would reach its own assessment of the gravity of Dr Zafar’s conduct by reference to the protection of the public. And it undoubtedly had the entitlement to receive the Court of Appeal decision in considering sanction, given the wide provisions of the 2004 Fitness to Practise Rules.

I repeat that the Court of Appeal did not displace any primary findings of fact of Garnham J. But not only did the Court of Appeal pronounce, by reference to the assessed seriousness of Dr Zafar’s conduct, that the suspended sentence of six months imprisonment was unduly lenient but also it gave valuable and important guidance as to the limited distinction properly to be drawn between dishonesty and recklessness in this particular context: a distinction which Garnham J (and in consequence the MPT) had emphasised but which the Court of Appeal corrected. Moreover, the Court of Appeal had corrected the error of the judge (as it concluded it to be) of taking the dishonest witness statement as the most serious aspect: whereas it lay (as the Court of Appeal held) in putting forward the revised report as his honest and independent opinion. Overall, had the MPT known, for example, that the sentence of Garnham J had been declared unduly lenient and had the MPT known of the limited distinction in this context to be attributed (in law) to the proven act of dishonesty and to the proven acts of recklessness and had the MPT known of the correction as to the most serious aspect of the case it is unthinkable, to my mind, that it would have expressed itself as it did. As Ms Morris put it, the Court of Appeal decision was “potently relevant”.

There is, in my opinion, no unfair prejudice arising to Dr Zafar from such a conclusion. In truth the only “prejudice” arising (as is, for example, commonly also the situation arising in applications under s.78 of the Police and Criminal Evidence Act 1984) derives from the very relevance of this material.

So that leaves what ultimately, perhaps, became Ms O’Rourke’s principal point. It would nevertheless, she said, be wholly wrong and unfair to permit the Court of Appeal judgment now to be relied upon: just because it had been excluded from the MPT by agreement.

There are, as I see it, two answers to that: one short, one long.

The short answer is that such an agreement as was made below could not bind the Authority, which had not been party to it. It was entirely open to the Authority, in exercise of its functions under s. 29 of the National Health Service Reform and Health Care Professions Act 2002 and pursuant to s. 40B (3) and (4) of the Medical Act 1983, to seek to rely on the judgment of the Court of Appeal as fresh material in this court without the potential constraints that might otherwise apply: cf. Council of the Regulation of Health Care Professionals v GMC and Ruscillo [2004] EWCA Civ 1356, [2005] 1 WLR 717, at paragraphs 28-29 of the judgment of the court.

The long answer (so far as the GMC is concerned) derives from the court’s power under CPR r. 52.21 (2) to receive fresh evidence. The court ordinarily will have regard to the principles set out in Ladd vMarshall (cited above) and, where those criteria are not satisfied, usually will be inclined not to receive the evidence. But, under the modern rules, there is no absolute prohibition (as Ms O’Rourke fairly accepted) on receipt of such evidence even where the Ladd vMarshall criteria are not met.

Ms O’Rourke, however, said that not only could the GMC not satisfy the Ladd vMarshall criteria, but here it actually had agreed that the Court of Appeal decision should not go before the MPT: an agreement made both in advance of the hearing and then again (on the MPT’s perceptive query) at the hearing. The GMC should not, in such circumstances, now be permitted to go behind that, she said.

Were this what I might call “ordinary” civil litigation I would see the greatest force in such submissions.It may be that the reasons being advanced for excluding the Court of Appeal judgment were nebulous and would speedily have been exposed as such had this MPT (or another panel of the MPT) been asked to decide the issue as a preliminary matter. But the fact remains that, by agreement, the issue was resolved. And parties to litigation should ordinarily, in the interests of finality, be held to their compromises, be they wise or unwise.

But this is not “ordinary” civil litigation. These are proceedings conducted in the public interest and with the object of protecting the public. That consideration does not, I agree, necessarily of itself displace the usual need to satisfy the Ladd v Marshall criteria. But it is certainly a factor relevant to the overall exercise of discretion – see, for example, GMC v Adeogba [2016] EWCA Civ 162, [2016] 1 WLR 3367 at paragraphs 29 and 31 of the judgment of Sir Brian Leveson P. It seems to me that, in the circumstances of this particular case, that factor, taken with all the other circumstances, removes this case from some kind of norm. Given my clear opinion that the agreement to exclude the Court of Appeal decision was wholly erroneous and should never have been made, and given that it operated then to distort the hearing before the MPT and its attempt to achieve an informed and just outcome, I overall conclude that – assuming, for present purposes, that the published judgment of the Court of Appeal is to be styled “fresh evidence” – it should be adduced on this appeal on the application of the GMC.

Ms O’Rourke complained that, if that were to be so, then Dr Zafar had, by reason of the agreement, been deprived of his opportunity to debate the matter as a preliminary issue in the MPT proceedings. But in reality no unfairness arises. Ms O’Rourke accepted that she has been able to advance before us all the arguments relied upon on this issue. As a matter of law, there was no sustainable case (for the reasons I have given) for excluding the Court of Appeal judgment from the MPT in its decision on sanction. If and in so far as some residual discretion remained in this regard, then all I need say is that I can see no basis whatsoever, as a matter of discretion, for any reasonable panel of the MPT excluding the Court of Appeal judgment from the proceedings on sanction: on the contrary, there was and is every basis for including it.

Accordingly, the judgment of the Court of Appeal is formally to be admitted.

THE RESULT

The Divisional Court allowed the appeal.

“In my judgment, the appeal succeeds. Remittal to the MPT would serve no function: erasure is the only proper sanction. Accordingly, I would direct erasure of Dr Zafar’s name from the Medical Register.”